Gay Students Organization v. Bonner
509 F.2d 652 (1974)
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Rule of Law:
A state university violates the First Amendment rights of association and speech when it bans a recognized student organization from sponsoring social functions due to community disapproval of the group's message, absent evidence of actual material disruption or illegal activity.
Facts:
- The Gay Students Organization (GSO) was officially recognized as a student organization at the University of New Hampshire in May 1973.
- On November 9, 1973, the GSO sponsored a dance on campus which was held without incident.
- Media coverage of the dance and criticism from Governor Meldrim Thomson, Jr. led the University's Board of Trustees to reconsider the GSO's activities.
- On November 10, 1973, the Board issued a 'Position Statement' banning GSO social functions pending legal resolution of their 'legality and appropriateness'.
- When GSO requested permission to sponsor a play and a social function afterward in December, the University permitted the play but denied the social function.
- After the play, copies of two 'extremist' homosexual publications were distributed by individuals over whom the GSO claimed no control.
- Governor Thomson wrote an open letter warning the trustees he would oppose state funding if they did not 'rid your campuses of socially abhorrent activities'.
- University President Thomas N. Bonner announced a stricter interpretation of the Trustee ban on GSO social functions, stating repetition of the behavior (distribution of literature) would lead him to seek suspension of the organization.
Procedural Posture:
- The University of New Hampshire filed a declaratory judgment action against the GSO in Strafford County Superior Court on November 21, 1973.
- The Gay Students Organization (GSO) filed a lawsuit in federal district court (District of New Hampshire) on November 29, 1973, alleging First and Fourteenth Amendment violations under 42 U.S.C. § 1983, seeking injunctive and declaratory relief.
- The district court held a hearing for GSO’s request for a preliminary injunction on December 10, 1973, which the parties agreed would serve as a final hearing on the merits.
- Defendants (appellants) requested that the proceeding be reopened for additional evidence, and a second hearing was held on December 28, 1973.
- On January 16, 1974, the district court held for the GSO, finding its members had been denied their First Amendment right of association, and enjoined the University officials from restricting GSO social functions or treating the GSO differently than other student organizations.
- The defendants (Bonner, Stevens, O’Neil, Governor Thomson, and other members of the Board of Trustees) appealed the district court's decision.
- On January 29, 1974, the district court held a hearing on motions to dismiss regarding issues of timely service for several trustees, and on January 31, dismissed the action against the trustees in their individual capacities but denied motions to dismiss as they related to the trustees in their official capacities.
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Issue:
Does a state university violate the First Amendment rights of association and speech of a recognized student organization when it bans the group from sponsoring social functions due to community disapproval of its message, without evidence of actual disruption or illegal activity?
Opinions:
Majority - Chief Judge Coffin
Yes, a state university violates the First Amendment rights of association and speech when it bans a recognized student organization from sponsoring social functions due to community disapproval of its message, without evidence of actual disruption or illegal activity. The court affirmed that the First Amendment applies with 'full vigor' on state university campuses, rejecting the notion of a 'dual standard' for speech restrictions in the university environment, citing Healy v. James and Papish v. Board of Curators. The prohibition of social events for a cause-oriented group like the GSO, even if other activities are allowed, constitutes a substantial abridgment of associational rights because social events play an important role in attracting members and promoting common beliefs. The GSO, as a political action organization aiming to organize the homosexual minority and educate the public, engages in associational activity unequivocally protected by the First Amendment. The court found that GSO social events have communicative content, conveying messages about the existence, repression, and desire for understanding of homosexuals. Crucially, the court determined that the University's regulation was based 'in large measure, if not exclusively, on the content of the GSO’s expression,' as evidenced by appellants' reliance on preventing 'activities which the people of New Hampshire find shocking and offensive.' Such content-based restrictions are prohibited by the First Amendment, which means 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,' per Police Dept. v. Mosley. Applying the United States v. O’Brien test for expressive conduct, the court found the governmental interest asserted by the University (preventing offensive expression) was directly related to the suppression of free expression, thus failing the third prong of the test. The court rejected the argument that the ban was justified by fear of illegal activity, noting a lack of evidence of misconduct and emphasizing that 'undifferentiated fear or apprehension' is insufficient to overcome First Amendment rights, citing Tinker v. Des Moines Indep. Community School Dist. While a university has the power to regulate actual criminal conduct, advocacy of imminent lawless action, or materially disruptive behavior, the ban on GSO social functions was overbroad and not justified by any established misconduct, but rather by the group's unpopular message. The court modified the injunction to exclude Governor Thomson from its reach due to issues with service of process and his distinct legal position, but upheld it against the other University officials.
Analysis:
This case significantly reinforces the First Amendment's application to public university campuses, particularly concerning student organizations whose messages may be unpopular. It limits a university's ability to restrict student activities based on community moral disapproval, reaffirming that the principle of content neutrality is paramount in regulating speech in public forums. The ruling underscores that universities must provide evidence of actual disruption or illegal activity, rather than mere speculation or 'undifferentiated fear,' to justify restrictions on free expression and association, thereby protecting minority groups from discriminatory treatment disguised as campus regulation. This decision serves as a foundational precedent for student rights cases, compelling state institutions to protect a broad range of student expression.
